Icon: enlarge
Mountain of files on a bench
Photo: imago images / Deutzmann
memory
Do you remember the year 2013, dear readers?
That was
before
Corona and
before
Donald Trump, who deny each other's existence.
What is certain, however, is that there was Detlev Deal thirty years earlier, a criminal defense attorney from Mauschelhausen.
He succeeded in what every scientist dreams of: becoming famous through a single little essay, which he published in 1982 in the magazine »Strafverteidiger«.
The text dealt with the nature and mischief of the deal in the criminal process.
The shocking details of the litigation, which was first revealed there, were previously
unknown to
the experts “
as a judge
” and “
as a lawyer,
” of course, “
as a person
“But familiar, as it is with intent and conscience when a person has one leg in illegality.
After 1982 it became customary among professionals to have heard of the deal once and to "find" it either way (good) or so (permissible) or so (crude) or even so (inadmissible).
Later the first dissertations and incredulous mentions of the strange phenomenon were found in decisions of the Federal Court of Justice (for example BGHSt 38, 102) and the Federal Constitutional Court (for example "New Journal for Criminal Law" 1987, page 419).
Then nothing happened - if you disregard the fact that thousands of illegal deals were made and hundreds of conference papers were held on the topics of whether there are a) deals at all, b) they should be called that, c) they are good or bad and d ) you can, may or should do something about it.
In 1994 the 4th criminal senate of the BGH tore the thread of faith.
He devised a kind of auxiliary law under judicial law and formulated minimum requirements for a practice of discussing procedural results that is halfway compatible with the applicable criminal procedure code (BGHSt 43, page 195);
the Grand Senate for Criminal Matters later added a little sweet mustard (BGHSt 50, page 40).
There was a lot of excitement and it-doesn't-work-that-and-the-legislature-has-to-deal with it.
After another four years, he created the 2009 Understanding Act.
Down to business
We are talking about the deal in the criminal process, a kind of horse trade among honorary people, which is about the highest goods and the best morality that our state has to offer, and which has nevertheless found a way out of the paneled halls of the chambers and senates into the Men's toilets and hallways and deleted SMS.
That's the dark part.
Then there is what would not be called a deal, but rather "agreement" or "understanding".
It has been entitled to this civil name since the "Law on the Regulation of Understanding in Criminal Procedure" was published in Federal Law Gazette I of 2009, page 2280.
This is a good thing because it carries the principles of consensuality, harmony and peace.
If not, what is the goal of criminal justice?
Well, one could say: Criminal justice comes to peace through the means of struggle, and that usually does not begin with the surrender of the white knight.
But the magic word “consensuality” is of course nice anyway: It sounds like the citizen and his state pull together, even though it runs around the citizen's neck.
In addition, there are other beautiful words that can be heard: Acceleration, settlement, mitigation, waiver, legal force, uncontrolledness, money, fame and honor.
Thomas Fischer, arrow to the right
Born in 1953, is a legal scholar and was chairman of the 2nd criminal division of the Federal Court of Justice.
He is the author of an annually revised standard short commentary on the criminal code and numerous other specialist books.
Just as an example: A public prosecutor's office accuses Mr. A. of having committed 8,500 acts of investment fraud.
Fortunately, Mr A. still has friends who know defense lawyers who know that it can be really difficult to negotiate, prove and try 8,500 acts committed in a period of four years as managing director of twelve different, internationally dispersed corporations .
The degree of difficulty of such criminal proceedings is proportional to the drive of the criminal defense, which in turn is proportional to the constitutional persuasiveness of the fee agreement.
It's not forbidden, that's how the job works (if you like it).
On the other side we find a troop of three weary knights in simple robes, accompanied by two squires with empty eyes and by some comments in the penultimate edition.
This troop fights synchronously on twelve tournament grounds and no longer likes.
That was the shame variant.
In the alternative variant it goes like this: On the other side sit steel robots with square chins and icy eyes, behind them all the violence of the Leviathan, determined to destroy anyone who does not bow to their dictates and does not want to improve their statistics.
It has sinners in the hand of power, and defense lawyers crush them with the fist of the fee schedule and the professional code.
Before 2009 there was only the deal.
From 2009 the agreement was in the light and the deal - maybe - in the dark.
You can understand what the difference is when you understand the forms and goals that are even more closely related here than in any other life.
Because the goal is formlessness.
The problem, then, is that form is not only the skeleton, but also the flesh of the criminal case.
Criminal trial is a form for the sake of justice.
It is public and conducted by neutral judges according to rules that are the same for everyone.
He listens to the accused, does not torture them, does not coerce the witnesses, does not allow evidence to disappear and does not overlook any acts.
He listens to the victims, gives everyone involved the right to apply for evidence, to express themselves publicly and to reject biased judges.
He does not ask the accused to provide evidence against himself, to make confessions and to accept the punishment without protest.
These forms are rights that are not devised by power, but by law.
Many millions of people were tortured and many dire injustices committed before the criminal trial took this form.
There was always criticism and doubts: Why so much pen reading with criminals?
Why does a murderer need rights?
Why should liars have the right to speak, slanderers to petition, delayers to consider, and guilty to appeal?
Every day one can hear the people's wishes for a short trial, cutting off rights, pronouncing judgments before the trial, fueled by gossip and sensationalism.
What advantages can an agreement offer those involved?
The judges have the advantage that the process is shortened and less stressful, that one has a confession from the accused and does not need to gather evidence, that the process is free of conflict, that the agreed result is accepted and not contested, which means that there are no costly grounds for judgment must write.
Overall, a serious relaxation of the workload, acceleration of all processes, high numbers of transactions in a shorter time.
That also brings reputation: He's going to take something away!
Prosecutors have similar advantages: collusion can streamline, shorten and simplify preliminary and main proceedings by 90 percent.
Defense lawyers have disadvantages when paid on a time-consuming basis.
This can be compensated for by fee agreements if the client is capable of satisfactory.
Otherwise it has to be caught up with the crowd and the good relationships that one can develop with the judges and prosecutors if one proves to be someone "with whom one can talk".
For the acquisition of clients it is useful to be able to say: I'll ask the chairman what can be done.
For the accused, it is a matter of weighing up: "mild" punishment on the one hand, litigation risk on the other.
A question of the evidence, the facts, the prognosis.
You're lucky if you can choose.
Whoever has committed 8,500 fraudulent acts can usually choose it.
Anyone who was arrested during armed robbery does not: they have nothing to deal with.
An agreement is a form of procedure from which all parties have only advantages except for one: The victim usually has nothing to gain.
That is why it is not asked in either the »understanding« or the »deal« variant.
40 percent of the judges admitted that they would continue to participate in illegal deals contrary to the legal regulations.
A lot remains by the wayside: The public is only marginally involved: They are allowed to take note of the results when it comes up.
In the legal variant, the court tells you that you can dispense with taking evidence.
In the back room variant that is also omitted. The law often falls by the wayside: It is forbidden to deal with the law: for example, the application of facts, the imposition of measures, the assessment as a less severe or particularly severe case.
Nobody is so stupid as to explicitly do that.
Instead of dealing with whether "serious" or "simple" robbery should be confessed, one talks about whether the accused had a gun with him or not, whether it was loaded or not, whether he belonged to a gang or not.
The deal offer is: confession of simple robbery against omission of the evidence and the imposition of two years with probation.
The alternative without a confession: particularly serious robbery and five years, six months.
The same goes for gang-type BtM trafficking, commercial fraud or unclear evidence about the sexual abuse of children.
It's hard to say no when there is someone on the other side who can really hurt you.
Justice falls by the wayside: On the one hand, in the sense of the principle of guilt, because with seeing inappropriately low penalties are thrown out and evidence is not taken.
On the other hand, in the sense of equality: the more negotiating assets a suspect brings with him, the better his chances of trading.
Those
who
commit complicated crimes have a
lot of
negotiating power: the economy, the environment, narcotics, international arms or raw materials
deals
are
dealmakers
, because a "lean" confession
saves
the court two years of time and 500 pages of due diligence in the judgment.
In the event of theft, assault or robbery, you usually have very little to deal with.
Even murder can be negotiated: is the guilt particularly serious if a remorseful confession refutes the presumption of legal hostility?
And even in the case of sexual crimes, the negotiating assets are on the table: a slim confession, "victim-friendly" abbreviated evidence, clear punishment and legal force.
There is evidence in which defense lawyers advise their clients to consult, even in the event of innocence.
law and order
What can be built in for safeguards, on the other hand, has been done by the Understanding Act: All conversations about understanding must be recorded and disclosed in the main negotiation.
All offers and statements must be documented.
Agreements against the truth, agreements about substantive law, about measures of reform and security, about "punctual penalties" (i.e. precisely predetermined levels of punishment) and about waivers of legal remedies are prohibited.
You will have noticed that the prohibitions are consistently ones that are particularly painful for those involved because they involve behaviors that are just beginning to make the deal worthwhile.
If those professionally responsible for compliance with the law agree not to comply with the law, the law has no chance.
Another way of putting it is: the more the law is broken, the less it can come out.
If everyone agrees with a wink and could blackmail each other, the BVerfG can cry a few tears after the rule of law from a distance, nothing else.
A state that threatens its citizens with penalties and fines for violations of the law must not look the other way if its own staff has notorious violations of the law.
Now you can say and say it hundreds of times: judges, public prosecutors and lawyers don't do that.
Organs of the administration of justice
do not trade justice for convenience.
Life says: Yes, they do.
If you - like the columnist among others - found out ten years ago, you were considered to be a "nest-dirtier" and a black painter.
It can't be, said
Palmström
, chairman of the judges' association, president of the bar association and minister of justice in one person, because it is forbidden.
In 2011, the BVerfG commissioned a university professor to conduct an empirical study of the compliance level and legal compliance of those involved.
The result stunned even hard-hitting fine speakers for a short time: 40 percent of the judges admitted that they would continue to participate in illegal deals contrary to the legal regulations.
"Without a waiver of legal remedies, there is no deal with me," is a powerful saying from judges who want to be seen as "experienced practitioners".
The forbidden
point
penalties
are secretly agreed and
decorated
with
fake
penalties
for the record
.
Evidence is discussed between the chairman and defense counsel and "agreed" with the public prosecutor's office;
then the facts are ascertained as the predetermined result requires.
All of this is possible when there is
agreement
.
The motives are not in themselves contemptible: Nobody who participates does it to create injustice.
Everyone wants the best: for the client, for the victims' witnesses, for the law, the acceleration, the career and the statistics.
And always for justice!
After all, what could be nicer to a judge than to finally be freed from all the rules of the 200-year-old criminal process, to finally be able to serve justice based on the wisdom of gut feeling, without having to fear bean counters in Karlsruhe?
Does a multiple drunk offender need a legal hearing at the district court, reports about traces or culpability or the bringing in of witnesses in order to get what he has earned and accepted?
Can't proceedings for a hundredfold child abuse even if the accused says that he is "actually" innocent by means of a formal admission against a suspended sentence?
I don't know any (!) Judge or public prosecutor who would have said that a deal he had made had a "wrong" result.
That's the nice thing about consensuality that everyone is happy with themselves.
Probation period
Seven years ago the Federal Constitutional Court (file number 2 BvR 2628/10) said it couldn't be done: The Mutual Understanding Act is only constitutional if it
ensures compliance with the mandatory rules
in practice
.
It is the responsibility of the legislature to check this on an ongoing basis, and the constitutionality of the law depends on how this check turns out.
In addition, the public prosecutor's office is called upon to monitor compliance with the law;
their job is to prevent circumvention of the law.
Yes, everyone swore that this was exactly what they had always wanted to say and that they were now quite sure that nothing bad would happen again.
Since then, (almost) nothing has been heard or seen: no deal scandals, no appeals by the public prosecutor, no indictments of perversion of the law, no readjustments.
Instead, weeping and gnashing of teeth from deeply concerned citizens who lamented the inconvenience of those who were guilty anyway: strangers, rebels, child pornographers and others who, in the opinion of the media, blogs and portals, have already "forfeited" their rights when a police union says so.
The public is only marginally involved: if it comes up, it is allowed to take note of the results.
The Federal Ministry of Justice commissioned three professors from different universities to carry out a large evaluation study.
It is now available (
Altenhain, Jahn, Kinzig
: The practice of understanding in criminal proceedings, 2020): You can find the 540 pages on the Ministry's website;
soon they will appear as a book.
I limit myself to the following preliminary information: 30 percent of the judges and 80 percent of the defense lawyers indicated in surveys that illegal deals continue to occur and are common in their practice.
The public prosecutors, on the other hand, do practically nothing or participate.
One can assume that the respondents behave as usual in criminological studies: the judges and prosecutors probably understated the number of their violations, the lawyers exaggerated.
The latter is interesting because it supports the belief that the driving and dominant power of illicit collusion today is the courts rather than the defense;
Defense lawyers often portray themselves as a kind of victim of legal pressure, which they only submit because they do not want to harm their clients.
That is of course euphemistic, because after the verdicts have been pronounced, they could appeal against the agreements or scandalize the illegality.
It is not forbidden!
But of course
crude
and not useful for your own advancement.
It should be mentioned anyway, because of the »organ of the administration of justice« and with regard to the speeches of the board members of the bar associations.
The probation period granted by the BVerfG in 2013 has expired.
Now we have to decide whether it was a funny pastime by constitutional judges or a serious reference to the limits of the law and the end of good humor.
A criminal justice system whose staff behave like motorists driving around between speed cameras can hardly claim to be a symbol of credibility and a guarantor of the rule of law.
The rule of law does not first and foremost mean that one should strive to achieve results "somehow" fairly.
But that the state adheres to its own rules, that state action and state power are under the law.
If you don't want to and don't understand that, you may be a nice person.
He is not suitable for criminal law.
What to do?
We can now look forward to the reactions.
If these were to be exhausted in renewed appeals to goodwill, the line of silliness would be clearly exceeded.
A state that threatens its citizens with penalties and fines for violations of the law must not look the other way if its own staff has notorious violations of the law.
The fate of criminal law is not decided in the annual tightening round for child pornography or »psychological harassment«, but in the trust that the organs of law adhere to their own right and do not circumvent and bend it out of laziness, arrogance or cowardice.
The procedural sanctions for violations of procedural law must be tightened and effectively controlled.
The persons harmed by the accused and their legal representatives must be included in possible mutual agreements;
they must be given a right to intervene, to prevent inadequate outcomes and to appeal.
One should also think about an appropriate system of "whistleblowing" that enables those under pressure or witnesses (assessors, lay judges, judicial officers, lawyers) to point out illegal deals without being exposed to "collegial" bullying.
Deliberate evasion of the law must be outlawed informally, but also formally prosecuted.
It is intolerable that judges who have sworn to make decisions in accordance with the law at all times are exempted from criminal liability in the event of willful breaches of the law, if they only assert that they have considered it "fair".
This privilege of perversion of the law - flanked by a "blocking effect" for all facts realized at the same time - is neither necessary for the independence of the judiciary nor useful for trust in the judiciary.
Judges and prosecutors are no better people than others.
In order not to make yourself liable to prosecution, you do not need any privileges that would only make punishment possible for gross stupidity.
Interesting too
Criminal law: unlawful, not guiltyA column by Thomas Fischer
It is necessary to reflect on the structure of procedural law as a whole, the system of appeal and the substantive requirements.
Substantial relief is required.
It has to start with material law and stop, to force more and more barely manageable facts into law and to leave practice alone with the overload.
Criminal law is not a law of prevention and must not be made into a field for legislation on measures and political legal symbols.
The alternatives are on the table.
Doing nothing destroys the criminal process we are familiar with and its legitimacy.
It would also blatantly disavow the case law of the BVerfG.
Moving ahead means having a chance.
Incidentally, this is what Luke the train driver once said while crossing the Valley of Twilight.
And came to China.
Icon: The mirror